When a dispute arises in relation to a Land Registry application and eventually proceeds to the First-tier Tribunal (Property Chamber), parties often overlook a critical question: who pays the legal costs incurred before the Tribunal gets involved?
The short answer:
Costs incurred before the matter is formally referred to the Tribunal are considered to be part of the proceedings before the Registrar. These are governed by a different costs regime than that which applies in Tribunal proceedings.
Key legal framework:
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- Section 76 of the Land Registration Act 2002 (LRA 2002)
- Rule 202 of the Land Registration Rules 2003
- Practice Guide 38 (HM Land Registry)
- Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013
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Proceedings before the Registrar
Until the application is referred to the Tribunal (under section 73(7) of the LRA 2002), any dispute remains a matter before the Registrar. This includes initial objections, correspondence, and preliminary work.
Under Rule 202 of the Land Registration Rules 2003, the Registrar may order a party to pay another party’s costs only where the paying party has behaved unreasonably. There is no general power to award costs just because a party is unsuccessful.
Practice Guide 38 confirms this …
Paragraph 2.1 of HM Land Registry’s Practice Guide 38 states:
“The tribunal has no power to make an order for costs in respect of the proceedings before the registrar whether incurred before or after the reference to it.”
This means that even after the Tribunal takes over the dispute, costs incurred prior to that referral still fall outside its jurisdiction.
The Tribunal’s powers on costs
The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 limit the Tribunal’s ability to award costs. It may only do so where:
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- A party has acted unreasonably in the Tribunal proceedings,
- There is a wasted costs application, or
- Another limited statutory provision applies.
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None of these extend to the pre-referral phase.
What changed in 2013?
Not much. Before 2013, such disputes were handled by the Adjudicator to HM Land Registry. Since July 2013, they are determined by the Tribunal. But the cost regime has remained the same:
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- Costs before the referral are governed by section 76 / Rule 202, not by the Tribunal.
- The Tribunal cannot retrospectively award those costs.
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Why does this matter?
Because parties frequently attempt to recover pre-reference legal costs through Tribunal proceedings. This is not permitted. Parliament has made clear that any such recovery must be sought via a costs application to the Registrar, and only in cases involving unreasonable conduct.
Summary
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- Costs incurred before the date of reference (e.g. 6 October 2022) are governed by the Registrar’s costs regime.
- The Tribunal cannot award those costs.
- Only the Registrar can do so, and only where the paying party acted unreasonably.
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This reflects a deliberate and structured separation of jurisdiction – and a more limited entitlement to costs than many parties assume.
